2a..doc R.M. AMBERKAR (Private Secretary) IN IN THE THE HIGH HIGH COURT COURT OF OF JUDICATURE JUDICATURE AT AT BOMBAY BOMBAY O.O.C.J. O.O.C.J. COMMERCIAL ARBITRATION PETITION NO. 257 OF 2022 WITH INTERIM APPLICATION NO. 4479 OF 2022 Karanja Terminal & Logistics Pvt Ltd Having its registered office at Hermes Atrium, Office No. 411, 4 th Floor, A Wing, Plot No. 57, Sector No. 11, CBD Belapur, Navi Mumbai – 400 614. .. Petitioner Versus Sahara Dredging Ltd Having its registered office at 707, Madhava, BKC, Bandra (E), Mumbai – 400 051. .. Respondent .................... Mr. Gautam Ankhad a/w Mr. Sunny Shah, Ms. Chaiti Desai and Mr. Keneth Martin i/by Advani & Co for Petitioner Mr. Karl Shroff a/w Mr. H.N. Vakil, Ms. Shriya Mehta and Ms. Suzan Vakil i/by Mulla & Mulla and CB & C for Respondent ................... CORAM : MILIND N. JADHAV , J. DATE : MARCH 13, 2023 JUDGMENT : 1. The present Commercial Arbitration Petition filed under S ection 37(2)(b) of the Arbitration & Conciliation Act, 1966 (for short “the said Act” ) challenges the Order dated 02.05.2022 passed by the learned Arbitrator in Section 17 Application filed by Respondent. By the said order, t he learned Arbitrator allowed Respondent’s Section 17 Application to the extent of directing the Petitioner (original Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 1 of 26 2a..doc claimant) to furnish security for the amount of Rs. 5,66,30,579/- or provide a bank guarantee of a nationalized bank of the said amount, pending the arbitral proceedings. 2. Interim Application No. 4479 of 2022 is filed for seeking stay on enforcement and implementation of the order dated 02.05.2022 which is the subject matter of challenge in the Arbitration Petition. 3. Arbitration Petition is taken up for final hearing and disposed of by this order 4. To appreciate the lis between the parties leading to the passing of the impugned order, such of the relevant facts as are relevant are briefly set out hereunder:- (i) On 17/11/2014, parties entered into a contract for dredging and reclamation works namely Capital Dredging and Maintenance Dredging at Karanjapur, Maharashtra. This Contract was revised on 07.01.2015 and additional contract was executed on 18.07.2017. (ii) In 2018–19 Respondent failed to fulfill its contractual obligation of dredging a minimum quantity of 10,000/- Cu.m. per day under the Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 2 of 26 2a..doc revised contract. This entitled the claimant to withhold 40% of the payment as per the contractual payment clause under the title ‘ rate of progress to be achieved’ (iii) On 05.03.2021 and 12.04.2021 claimant issued two Cure Notices to Respondent due to its failure to meet the deadline. These notices were responded to by respondent vide letters dated 09.03.2021, 13.04.2021 and 18.04.2021. (iv) On 21.05.2021 notice of termination was issued by claimant’s advocate invoking arbitration under Clause 15.3 of the contract. (v) On 01.06.2021 and 16.06.2021 without prejudice settlement meetings were held between parties on video conference. (vi) On 17/6/2021 during the third settlement meeting, officers of both parties drew up a joint reconciliation statement reflecting invoice amounts raised by Respondent and certified by claimant. This reconciliation statement reflecting the amount of Rs. 5,66,30,279/- is the bone of the contention in the present proceeding. Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 3 of 26 2a..doc (vii) On 14.07.2021 Respondent’s Advocate issued letter, inter alia , enclosing the reconciliation statement between parties alongwith admitted claim of Rs. 10.27 crore due to the Respondent. (viii) On 20/7/2021 claim of Respondent was denied by claimant’s Advocate calling upon the Respondent to appoint its Nominee Arbitrator. This reply letter does not outrightly rejects or denies the reconciliation statement. (ix) On 23.03.2021Respondent filed arbitration Petition before this Court. (x) On 06.09.2021 Respondent filed Section 9 Petition before this court seeking relief of deposit. (xi) On 23.11.2021 this Court constituted the Arbitral Tribunal and directed Respondent’s Petition under Section 9 to be heard before the learned Arbitrator. (xii) On 25.01.2022 claimant filed Application under Section 17 of the said Act for seeking interim relief for securing its claims in arbitration, inter alia , on the ground that Respondent was not financially Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 4 of 26 2a..doc sound. (xiii) On 18.02.2022 Respondent filed its defense along with its counter claim before the learned Arbitrator. (xiv) On 03.03.2022 claimant filed its reply to Respondent's Section 9 / Section 17 application and annexed thereto an opinion of its C.A. stating claimant’s financial strength of Rs. 700 Cr. (xv) On 02.05.2022 learned Arbitrator passed the impugned order, inter alia , partly allowing the Application by directing Applicant to provide security or provide a bank guarantee for the said amount of Rs. 5,66,30,579/- pending arbitration. (xvi) Hence the present Appeal under Section 37. 5. Before I advert to my observations and findings, it would be apposite to briefly note submissions made on behalf of the parties. 6. Mr. Ankhad, learned Advocate for Petitioner, at the outset would submit that the contentious reconciliation statement appended to the letter dated 17.06.2021 is not a concluded contract or an acknowledgment of liability. He would submit that bare reading of the statement would mean that in addition to the amount of Rs. Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 5 of 26 2a..doc 5,66,30,579/-, the amount of Rs. 12,36,500.00 towards service tax of mobility bill was to be decided by the top management of both the parties. According to him, the said statement cannot be construed as certification for the work done and acknowledgment of liability, though the statement has been signed by officers of both parties since it was subject to the decision to be taken by the top management of both parties. 6.1. He would next submit that there is no demand notice issued by Respondent for claiming the amount of Rs. 5,66,30,579/- to be the amount of admitted debt in the counter claim filed by Respondent. C laimant has in fact denied any such demand of Respondent. T hat in the reply dated 14.07.2021 filed by the Respondent's advocate, no specific claim for Rs. 5,66,30,579/- has been made on the ground of a concluded contract on even acknowledgment of liability, on the contrary the reconciliation statement of Respondent claims an amount of Rs. 10.27 Cr. dues against certified bills without making any specific claim for the amount of Rs. 5,66,30,579/-. He has drawn my attention to paragraph No. 46 of Respondent's Section 9 Petition dated 05.09.2021 wherein it is averred that the reconciliation statement is an admitted amount to be read with paragraph nos. 63 to 68 and 76 of the same Petition wherein Respondent seeks security / deposit of the amount of Rs. 10,27,869/- or at least Rs. 5,66,30,579/-. He would Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 6 of 26 2a..doc however submit that there is no averment in the statement of defence that there is any concluded contract or acknowledgment of liability by the claimant to pay Rs. 5,66,30,579/- stated therein nor does the counter claim filed by the Respondent seeks an order on the basis of Rs. 5.66 Cr as an admitted claim. 6.2. He would submit that there is no pleading in the counter claim and the prayer clauses of the counter claim do not support Respondent's claim. In that view of the matter, he would submit that allowing such a relief without there being a specific claim in the statement of defence or counter claim or an acknowledgment of liability by claimant is contrary to the well settled principles of Order XXXVIII Rule 5 of the CPC. N otwithstanding the fact that the learned Arbitrator has held that the claimant is financially sound with a net worth of Rs. 722 Cr and there is no allegation that claimant is disposing of its assets to defeat the alleged claim of Respondent. He would therefore submit that on a holistic consideration of the reconciliation statement and pleadings, the impugned order directing Petitioner to furnish security is contrary to law and the underlying principles laid down governing grant of interim relief. 6.3. He has referred to and relied upon the decision of the Supreme Court in the case of Sanghi Industries Ltd Vs. Ravin Cables Ltd & Anr. 1 and drawn my attention to paragraph nos. 4 and 7 therein 1 2022 SCC OnLine SC 1329 Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 7 of 26 2a..doc and contended that unless and until the preconditions prescribed under Order XXXVIII Rule 5 of the CPC are satisfied and unless there are specific allegations with cogent material and unless prima facie the Court is satisfied that a party is likely to defeat a decree that may be passed by the learned Arbitrator by disposing of its properties and or in any other manner, an order of deposit or security cannot be passed under Section 9 or for that matter under Section 17 of the said Act. He would submit that any order passed by the learned arbitral Tribunal in such a case would have to conform to the provisions of Order XXXVIII Rule 5 of the CPC and only if the underlying conditions prescribed therein are satisfied, the Court can pass such an order. He would submit that in the present case, none of the said conditions having been satisfied or would exist, hence the impugned order deserved to be set aside. For the sake on convenience paragraph Nos. 4 to 7 of the decision in case of Sanghi Industries Ltd ( 1st supra ) are reproduced below and read thus:- “ 4. Having heard learned counsel appearing on behalf of the respective parties and in the facts and circumstances of the case, more particularly, when the bank guarantees were already invoked and the amounts under the respective bank guarantees were already paid by the bank much prior to the Commercial Court passed the order under Section 9 of the Arbitration Act, 1996 and looking to the tenor of the order passed by the Commercial Court, it appears that the Commercial Court had passed the order under Section 9(ii)(e) of the Arbitration Act, 1996 to secure the amount in dispute, we are of the opinion that unless and until the pre-conditions under Order XXXVIII Rule 5 of the CPC are satisfied and unless there are specific allegations with cogent material and unless prima-facie the Court is satisfied that the appellant is likely to defeat the decree/award that may be passed by the arbitrator by disposing of the properties and/or in any other manner, the Commercial Court could not have passed such an order in exercise of Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 8 of 26 2a..doc powers under Section 9 of the Arbitration Act, 1996. At this stage, it is required to be noted that even otherwise there are very serious disputes on the amount claimed by the rival parties, which are to be adjudicated upon in the proceedings before the arbitral tribunal. 4.1 The order(s) which may be passed by the Commercial Court in an application under Section 9 of the Arbitration Act, 1996 is basically and mainly by way of interim measure. It may be true that in a given case if all the conditions of Order XXXVIII Rule 5 of the CPC are satisfied and the Commercial Court is satisfied on the conduct of opposite/opponent party that the opponent party is trying to sell its properties to defeat the award that may be passed and/or any other conduct on the part of the opposite/opponent party which may tantamount to any attempt on the part of the opponent/opposite party to defeat the award that may be passed in the arbitral proceedings, the Commercial Court may pass an appropriate order including the restrain order and/or any other appropriate order to secure the interest of the parties. However, unless and until the conditions mentioned in Order XXXVIII Rule 5 of the CPC are satisfied such an order could not have been passed by the Commercial Court which has been passed by the Commercial Court in the present case, which has been affirmed by the High Court. 5. In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the High Court and that of the order dated 13.10.2021 passed by the Commercial Court in an application under Section 9(ii)(e) of the Arbitration Act, 1996 directing appellant to deposit the amount of performance bank guarantees pertaining to purchase order Nos. 01, 02 and 03 already invoked by the appellant herein, are hereby quashed and set aside However, at the same time to protect the interest of the parties, we direct that the appellant herein shall furnish an undertaking backed by the Resolution of the appellant's company before the Commercial Court that in case any award is passed by the learned Arbitrator in arbitration proceedings, the same shall be paid/honoured by the appellant subject to the challenge before the higher forum. Such undertaking backed by the Resolution of the appellant's company shall be filed before the Commercial Court within a period of four weeks from today, with this the present appeal is allowed. No costs.” 7. Per Contra Mr. Shroff, learned A dvocate for Respondent has drawn my attention to the averments made by Respondent in its Section 9 Petition, notably paragraph Nos. 46, 69 and 70 of the Petition which, inter alia , raises a specific claim in respect of the amount of Rs. 5,66,30,579/- and seeks direction for securing the same. Next he has drawn my attention to the counter claim filed by Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 9 of 26 2a..doc Respondent wherein Respondent has raised a claim of Rs. 10,27,30,869/- being the admitted dues for reconciliation certified by both parties which categorically includes the claim for Rs. 5,66,30,579/- therein. He has next invited my attention to the reply- letter dated 20.07.2021 issued by Petitioner which is at page 257 of the compilation. He would submit that vide letter dated 20.07.2021, Petitioner has responded to the Respondent’s letter 14.07.2021 which encloses the reconciliation statement of total invoices certified for payment by Petitioner bearing certification and the work done by endorsement of officers of both parties. He would submit that paragraph No. 3 of the letter dated 20.07.2021 when read would show that Petitioner has in fact agreed that the reconciliation statement may have been agreed upon during settlement talks but since the same is now subject matter of arbitration, Petitioner would not accept the same as admitted. Next he has drawn my attention to the averments made by Petitioner in its affidavit-in-reply dated 03.03.2022 to the respondent's Section 17 application and more specifically to paragraph nos. 7 and 8 therein and contended that it is admitted by Petitioner that all statements / admissions made by the representative of the Petitioner during settlement talks was with a view to explore a possibility to amicably settle the matter and therefore it is was not legally permissible for Respondent to rely upon such statements which were made during the “Without Prejudice” meetings. He has Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 10 of 26 2a..doc referred to a further affidavit-in-reply dated 29.03.2022 filed by Petitioner wherein it has been admitted that a total amount of Rs. 57,43,04,711/- has been released to the Respondent along with an amount of Rs. 4 Cr towards ad hoc payment which is reflected in Exh. ‘W’ to Respondent's Section 17 Application. In support of this submission , Mr. Shroff has drawn my attention to the findings returned in the impugned order in paragraph Nos. 52, 57, 58 62 and 63 and contended that it would be a futile exercise to interfere with such cogent and reasoned findings given by the learned arbitrator under Order XXXVIII Rule 5 of the CPC, considering the scope and ambit of the said provision. 7.1. In support of his above submissions, he has referred to the following two decisions of this Court in support of the impugned order :- (i) Dinesh Gupta & Ors. Vs. Anand Gupta & Ors 2 (ii) Ultra Deep Subsea Pte Ltd Vs. Hindustan Oil Exploration Company Ltd & Anr. 3 7.2. He would submit that in the case of Dinesh Gupta ( 2 nd supra ), Appeal was filed under section 37(2)(b) of the said Act assailing the directions of the learned Arbitrator to Appellants therein 2 2020 SCC OnLine Del 2099 3 2021 SCC OnLine Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 11 of 26 2a..doc to furnish suitable security equivalent to the sum involved. In that respect he has drawn my attention to paragraph Nos. 64 and 83 to 86 of the said decision which read thus: “ 64. There can be no gainsaying the proposition, therefore, that, while exercising any kind of jurisdiction, over arbitral orders, or arbitral awards, whether interim or final, or with the arbitral process itself, the Court is required to maintain an extremely circumspect approach. It is always required to be borne, in mind, that arbitration is intended to be an avenue for “alternative dispute resolution”, and not a means to multiply, or foster, further disputes. Where, therefore, the arbitrator resolves the dispute, that resolution is entitled to due respect and, save and except for the reasons explicitly set out in the body of the 1996 Act, is, ordinarily, immune from judicial interference. ...... 83. T he resultant legal position is that, while the applicability of Order XXXVIII Rule 5, CPC, to the amended Section 17(1)(ii)(b) of the 1996 Act, may be seriously questionable, even under the pre-amended Section 17, the provisions of Order XXXVIII Rule 5 of the CPC cannot, bodily, be incorporated into the provision, though the principles governing the exercise of jurisdiction under Order XXXVIII Rule 5 are required to inform such exercise of jurisdiction. Either which way, therefore, while exercising jurisdiction under Section 17(1)(ii)(b), the arbitrator is not strictly bound by the confines of Order XXXVIII Rule 5 of the CPC, but is also proscribed from acting in a manner completely opposed thereto. A middling approach is, therefore, required, without treating Order XXXVIII Rule 5 as entirely inapplicable to Section 17(1) (ii)(b) (as Mr. Nandrajog would contend), or as applicable with all its vigour and vitality (as Mr. Nayar would contend). 84. Having said that, it is indisputable that the exercise of jurisdiction, by the arbitrator, under Section 17, is fundamentally discretionary in nature - as contrasted with Section 16(2) and (3). Judicial interference, with the exercise of discretionary power, is, classically, limited, and is even more circumscribed, where the authority exercising discretion is itself a judicial authority - as opposed to a purely administrative or executive functionary. (One uses the expression “judicial authority”, here, to denote the nature - rather than the status - of the jurisdiction exercised by the Arbitrator, it having been settled, by the Supreme Court, in M.D., Army Welfare Housing Organisation v. Sumangal Services (P) Ltd. (2004) 9 SCC 619, that an arbitrator is not a “Court”, and does not exercises judicial functions.) Discretionary orders passed by arbitral tribunals have, therefore, to be handled with kid gloves, and protected from injury by any overzealous administration, by the court, of the law as it perceives it to be. If anything, therefore, the jurisdiction of the Court, under Section 37(2)(b), is even more limited than the jurisdiction that it exercises under Section 37(2)(a) or, for that matter, under Section 34. The discretionary jurisdiction, as exercised by the arbitrator, merits interference, under Section 37(2)(b), therefore, only Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 12 of 26 2a..doc where such exercise is palpably arbitrary or unconscionable. 85. his position is additionally underscored, where the order of the arbitrator is relatable to Section 17(1)(ii)(b) or (e), and directs furnishing of security. Direction, to litigating parties, to furnish security, is a purely discretionary exercise, intended to balance the equities. The scope of interference, in appeal, with a discretionary order passed by a judicial forum, stands authoritatively delineated in the following passages, from Wander Ltd. v. Antox India P Ltd. (1990 Supp SCC 727): “ 13. On a consideration of the matter, we are afraid, the appellate bench fell into error on two important propositions. The first is a misdirection in regard to the very scope and nature of the appeals before it and the limitations on the powers of the appellate court to substitute its own discretion in an appeal preferred against a discretionary order. The second pertains to the infirmities in the ratiocination as to the quality of Antox's alleged user of the trademark on which the passing-off action is founded. We shall deal with these two separately. 14. The appeals before the Division Bench were against the exercise of discretion by the Single Judge. In such appeals, the appellate court will not interfere with the exercise of discretion of the court of first instance and substitute its own discretion except where the discretion has been shown to have been exercised arbitrarily, or capriciously or perversely or where the court had ignored the settled principles of law regulating grant or refusal of interlocutory injunctions. An appeal against exercise of discretion is said to be an appeal on principle. Appellate court will not reassess the material and seek to reach a conclusion different from the one reached by the court below if the one reached by that court was reasonably possible on the material. The appellate court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that if it had considered the matter at the trial stage it would have come to a contrary conclusion. If the discretion has been exercised by the trial court reasonably and in a judicial manner the fact that the appellate court would have taken a different view may not justify interference with the trial court's exercise of discretion. After referring to these principles Gajendragadkar, J. in Printers (Mysore) Private Ltd. v. Pothan Joseph,(1960) 3 SCR 713 : AIR 1960 SC 1156: :... These principles are well established, but as has been observed by Viscount Simon in Charles Osenton & Co. v. Jhanaton, [1942] A.C. 130 ‘...the law as to the reversal by a court of appeal of an order made by a judge below in the exercise of his discretion is well established, and any difficulty that arises is due only to the application of well settled principles in an individual case’.” The appellate judgment does not seem to defer to this principle.” 86. Th at this principle applies to exercise of appellate jurisdiction, Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 13 of 26 2a..doc over discretionary interlocutory orders, passed by arbitrators, under Section 17 of the 1996 Act, has been reiterated, by this Court, in several decisions, including Bakshi Speedways v. Hindustan Petroleum Corporation (2009) 162 DLT 638, EMAAR MGF Land Ltd. v. Kakade British Realities Pvt. Ltd. (2013) 138 DRJ 507, Reliance Communications Ltd. v. Bharti Infratel Ltd. 2018 SCC OnLine Del 6564, Ascot Hotels and Resorts Pvt. Ltd. v. Connaught Plaza Restaurants Pvt. Ltd. (2018) 249 DRJ 329 and Green Infra Wind Energy Ltd.v.Regen Powertech Pvt. Ltd. 2018 SCC OnLine Del 8273.” 7.3. He would submit that applying the principle discussed in the decision to the facts of the present case, the impugned order passed by the learned Arbitrator to furnish security is preceded by adequate examination and appreciation of the facts of the case and more pointedly the specific pleadings involved and is a reasoned order. He would submit that the decision of the learned Arbitrator is an informed decision by adequate application of mind as can be gathered from the findings returned in paragraph Nos. 57 to 63 of the order, the same being an interlocutory direction subject to the final award, no judicial interference is called for by this Court as the discretion exercised by the learned Arbitrator does not suffer from any patent illegality or is otherwise questionable in law or on facts to justify interference. 7.4. While referring to the decision in the case of Ultra Deep ( 3 rd Supra ) he has urged that the said decisions has referred to two decisions of this Court i.e. decision in the of Jagdish Ahuja V. Cupino Ltd [2020 SCC OnLine Bom 849) of the Division Bench of this Court and another decision in the case of Valentine Martime Ltd Vs. Kreuz Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 14 of 26 2a..doc Subsea Pte Ltd [2021 SCC OnLine Bom 75] and contended that the arbitral Tribunal has power to grant measures and secure the claim once the amount stands admitted as liability. That scope of Section 9 of the said Act is very broad and while considering a relief thereunder, it cannot be construed that it would be bound by the tetters of Order XXXVIII Rule 5 of the CPC and while exercising power under Section 9, it must have due regard to the underlying purpose of conferment of the power to the Court which is to promote the efficacy of arbitration as a form of dispute resolution. He would submit that provisions under Sections 9 and 17 of the said Act are meant for interim protection for the purpose of subject matter of the dispute until the arbitration proceeding culminates into an award and hence the Tribunal is empowered to pass such orders on the basis of admitted claim as in the present case. Hence he would submit that the impugned order be sustained. 8. I have heard Mr. Ankhad, learned Advocate for Petitioner and Mr. Shroff, learned Advocate for Respondent at length and with their able assistance, perused the record and pleadings in the present case. Submissions made by the learned Advocates have received due consideration of the Court. 9. In the present case, it is seen that the contentious reconciliation statement in respect of which the challenge is Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 15 of 26 2a..doc maintained in the present Petition is dated 17.06.2021 and is appended to the notice / letter dated 14.07.2021. It is at Exh “C” Page Nos. 78 to 82 of the Petition. The scanned copy of the reconciliation statement dated 17.06.2021 as well as paragraph Nos. 4 and 6 of the letter dated 14.07.2021 are reproduced hereunder for convenience:- Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 16 of 26 2a..doc In the Letter dated 14.07.2021:- “4. However, when the joint reconciliation of our account was done between our client and your client’s appointed officers (Site in charge and Accounts head) on 17 th June, i.e. after termination, which threw up a figure of Rs. 10.27 crores as the legally rightful due to our client against certified bills, your client has expectedly restored to the usual evading / disappearing / frivolous tactics that has been a common feature with them over the years. 5. .... 6. With reference to para 2 of your letter, our clients deny all the allegations mentioned therein. The following ‘Without prejudice’ meetings went on smoothly : a) 1 st Without Prejudice meeting 1 st June, 2021 (By VC) b) 2 nd Without Prejudice Meeting 16 th June, 2021 (By VC) c) 3 rd Without Prejudice Meeting (for joint reconciliation of Account) 17 th June, 2021. Your clients have already acknowledged the reconciliation statement which shows the dues payable by your clients to our clients. But, it is only with a view to defeat our clients legitimate claim, your clients came out with totally false allegations against our clients, which we strongly challenge and oppose with costs. We attach herewith reconciliation statement signed by your clients. Your client’s fraudulent intentions are obvious from the fact that from 17 th June, 2021 onwards, even after acknowledging that Rs. 10.27 crores is rightfully due to our clients against certified bills, your clients have continuously avoided and refrained from attending the Without Prejudice settlement meetings with loads of blatant, ridiculous and childish excuses day after day, thereby avoiding appearing for just a Video Conference, which is possible to attend in whatever state you may be in, as per the various excuses dished out by your client on 3 different occasions. (1. “I am urgently called to Delhi”, 2. “I am having fever and chills”, 3. “I am in long VC discussions with UK parent company on VC”, & 4. “I am going for urgent emergency Pune visit” etc. etc. etc.) Our clients deny that they have done any misconduct in the matter and on the contrary till 17 th June 2021 they have as usual continued their co-operation and support to your client even after termination. However, it is clear that your clients want to continue their usual malicious approach even at this stage and delay the matter and evade payment of dues to our clients. Our clients submit that your clients are widely known as frequent, willful delayers and defaulters in paying their dues to various entities, right from the smallest of Contractor to big corporate Contractors and even statutory authorities, for the reasons best known to your clients and hence do not need any “slandering or mudslinging” definitely not from a professional contractor like our Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 17 of 26 2a..doc clients. We have taken a search in the High Court and understand that there are disputes pending against your clients initiated by Sneha Metals Pvt Ltd for recovery of crores which is only to be expected considering your clients track record.” 10. Before I advert to the merits of the above reconciliation statement, it would be worthwhile to contextually refer to the reply dated 20.07.2021 given by Petitioner to the letter dated 14.07.2021 expressing its stand in respect of the reconciliation statement . The said reply is at Exh. “X” page No. 132 of the Convenience Compilation. Paragraph No. 3 of the said reply is extremely relevant with regards to the stand taken by the Petitioner and is reproduced here under:- “3. Furthermore, as regards to any such “reconciliation statement” that may have been agreed upon during such settlement talks, the same is now a subject matter of arbitration, and we crave leave to respond to the same in detail upon the commencement of the proceedings.” 11. From a conjoint reading of the letter dated 14.07.2021 and reply dated 20.07.2021, following is the admitted position, namely, it is clear that settlement talks did take place between the parties; that during such settlement talks the reconciliation statement of total invoices certified for payments by the Petitioner to the extent of Rs. 5,66,30,579/- was certified, arrived at and endorsed by the officers of both parties; that these officers are site in-charge and accounts head of both parties and most importantly Petitioner’s reply thereto that though the reconciliation statement may have been agreed upon during such settlement talks, since the same was subject matter of Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 18 of 26 2a..doc arbitration, they would deal with the same upon commencement of proceedings. This clearly shows that though Petitioner admitted that the reconciliation statement was an admitted and agreed position in their reply, it is now that a clear and contrary stand is adopted by the Petitioner. Hence in this context it would be worthwhile to therefore refer to the findings of the learned Arbitrator. 12. Mr. Ankhad has argued that the disclaimer note appearing below the table on the reconciliation statement would equally apply to the amount of Rs. 5,66,30,579/- which would have to be decided by the top management of both parties. If that be the submission of Petitioner, then nothing prevented the Petitioner from adopting that stand in its reply dated 20.07.2021. As alluded to herein above, paragraph No. 3 of Petitioner’s reply dated 20.07.2021 in fact clearly records that ‘ as regards to any such “reconciliation statement” that may have been agreed upon during such settlement talks, the same is now a subject matter of arbitration .....’. The words “..... that may have been agreed....” show that there is an admission on the part of the Petitioner of the work admittedly done by Respondent. Once having come to the conclusion that the amount of Rs. 5,66,30,579/- is the amount which the parties have agreed is due to Respondent, the interim direction given by the Tribunal to secure the said amount cannot be faulted with. It is preceded with cogent reasons and clarity Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 19 of 26 2a..doc of thought. It is pertinent to note that the learned Tribunal has stated that its direction to secure the said amount would be without prejudice to the rights and contentions of the parties. The learned Tribunal has referred to the pleadings of the parties which are elaborately argued in order to show whether the amount stated in the reconciliation statement was part of the counter claim pleaded by the Respondent and whether it was contained in the pleadings. Such pleadings have been noted by me while referring to the submissions made by Respondent. There is no denial of the fact that the reconciliation statement is not part of the correspondence and claim between both parties. All that the Petitioner has argued on reading the same is that it was not a concluded contract or acknowledged claim. If that be the submission then what would be the effect of joint endorsement of Rs. 5,66,30,579/- as endorsed by officers of both parties? Read with the reply dated 20.07.2021, the reconciliation statement has to be construed as admitted claim. Assuming for a moment that Mr. Ankhad is right in his contention that the amount mentioned in the reconciliation statement was yet to be decided by top management of both parties, the reply to the same on 20.07.2021 however does not support his such submission. On the contrary, the reply affirms that the works done / certified in the reconciliation statement may have been agreed upon during such settlement talks, but due to invocation of arbitration, they were not accepted. The fact Corrected / Modified Judgment as per Speaking to the Minutes order dated 16.03.2023 20 of 26